C was born by caesarean section at 20:34 on 14 February 2003 He was profoundly asphyxiated at birth and suffered ischaemic brain damage with four limb cerebral palsy and permanent neurological disability [1]
C says that his injuries were caused or materially contributed to by the negligence of D. Both breach of duty and causation are in issue… D says that there was no breach of duty in this case and that even if there were C would have sustained the same injury. [2]
The period of time between incision on commencement of the caesarean section and delivery of C was 17 minutes because of the impaction of the baby’s head. The evidence shows, in my judgment, that it was during this period that the injury to the baby was caused. [3]
C says, in essence, that there was a negligent delay in delivery. It is submitted that there were several negligently delayed steps in reaching commencement of the caesarean section. It is common ground that the baby’s head was severely impacted and that freeing it took some time during the course of delivery and that the delay led to cord compression and hypoxia (deprivation of oxygen) which in turn led to permanent damage. C’s case is that the period of hypoxia was in fact about 13 minutes and the period of damaging hypoxia was about 2 to 3 minutes in duration. The experts on causation agreed that if the baby had been delivered within 10 minutes of opening the uterus he would probably not have sustained any permanent brain injury… it is agreed that it was during the final few minutes of the delivery that the claimant suffered the damaging hypoxia. [4]
C argues that had D not negligently delayed in taking various steps leading up to the commencement of the caesarean section the baby’s head would have been less impacted and delivery would have been swifter meaning that there would have been no damage caused by asphyxia. [5]
D submitted that the alleged delay in undertaking the various steps in the sequence of actions leading to delivery made no difference because the hypoxia was caused by the delay due to impaction which would have been the same at whatever time delivery occurred after about 18:30. D accepts that if it had been possible to disimpact the baby’s head and deliver him just a few minutes earlier he would have avoided all injury. [6]
The issues therefore, in very broad terms, are whether there were negligent delays in getting to delivery of the baby and whether, but for those delays, the baby’s head would have been less impacted with the consequence that the delivery would have been swifter and the period of hypoxia shorter (and no more than 10 minutes) with the result that the baby would have suffered no damage. [9]
C makes no criticism of the way in which or the time that it took to disimpact the baby’s head once the caesarean section had been performed, C’s case is that if the caesarean section had been carried out an hour earlier the impaction would have been less and the disimpaction and delivery would have been easier to perform and therefore quicker at that point. [82]
when it was discovered that the baby’s head was impacted, and it then took 17 minutes to free the head and deliver the baby. It is not suggested by C’s experts that this period of time was unreasonable [124]
The evidence suggests, in my judgment, that the baby was in good condition until the commencement of the caesarean section. The baby’s injury was sustained during the 17 minutes between incision and delivery. [158]
It is not suggested that D acted negligently in delivering the baby, ie from incision to birth. The complicating factor was impaction. It is not suggested that D knew or ought to have known prior to commencing the caesarean section that the baby’s head was impacted. [164]
The degree of impaction of the baby’s head, which led to the delay between incision and delivery and led to C’s injury, could not have been expected or prevented. [173]
C has failed to establish that D acted in breach of its duty or that the alleged breaches caused or were a material contribution to the injury which he suffered. [185]
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